Filed 9/11/18 P. v. Robinson CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Cheri

T. Pham, Judge. Affirmed.

Leonard J. Klaif for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.

The sole issue in this appeal is whether the trial court erred in sentencing appellant Lee Hoang Robinson to consecutive prison terms on his convictions for sexual battery by fraud. Finding no error, we affirm the judgment.

FACTS AND PROCEDURAL BACKGROUND

Appellant invited Dianne N. and her sister Christine to his beauty parlor one evening. The women thought appellant was going to give them a facial, but he ended up sexually battering them under the guise of giving them a “European massage.” The batteries occurred in the same room and in close proximity to each other. Appellant started out by massaging the outer part of Dianne’s breasts. Then he worked his way down to her waistline and rubbed her vaginal area. After that, he turned his attention to Christine, who, like her sister, was lying on a table with a cloth over her eyes. First he rubbed Christine’s stomach and breasts, and then he penetrated her vagina with his finger.

A jury convicted appellant of two counts of sexual battery by fraud as to both Dianne and Christine. (Counts 6 thru 9.) Although not relevant to this appeal, it also found appellant guilty of committing four counts of the same offense against two other victims. (Counts 1, 2, 4 & 5.) And it convicted appellant of raping one of those victims with a foreign object. (Count 3.) The trial court sentenced appellant to 12 years in prison for his crimes.

On appeal, we found there was insufficient evidence to support appellant’s convictions for sexual battery by fraud on counts 1, 2, 4 and 5 and reduced those convictions to the lesser included offense of misdemeanor sexual battery. (People v. Robinson, previously published at 227 Cal.App.4th 387, rev. granted Sept. 24, 2014, S220247.) However, upon further review, the California Supreme Court determined this reduction was improper because the two offenses overlapped in such a way as to leave no room for the lesser offense. (People v. Robinson (2016) 63 Cal.4th 200.) Accordingly, after the case was transferred back to us, we reversed appellant’s convictions outright on counts 1, 2, 4 and 5. (People v. Robinson (Jul. 29, 2016, G048155) [nonpub. opn.].) Because the trial court had structured appellant’s sentence based on those counts, we also remanded the case for resentencing. (Ibid.)

On remand, the trial court sentenced appellant to 12 years in prison, matching his original sentence. In particular, the court imposed the upper term of eight years for the rape in count 3. It justified imposition of the upper term on the basis the crime was carried out in a sophisticated manner, appellant took advantage of a position of trust over the victim, and appellant has a considerable criminal record. The court found no mitigating factors present.

For the crimes he committed against Dianne and Christine in counts 6 thru 9, appellant was sentenced to consecutive one-year terms. Citing the California Rules of Court, the court gave two reasons for running these terms consecutively to each other. First, the crimes and their objectives were predominately independent of each other. (Cal. Rules of Court, rule 4.425(a)(1).) And second, the crimes were committed at different times. (Id., rule 4.425(a)(3).)

DISCUSSION

Appellant challenges the trial court’s decision to impose consecutive sentences on counts 6 thru 9. He contends the decision constitutes an abuse of discretion because, contrary to the trial court’s belief, the crimes in those counts were committed at the same time. We uphold appellant’s sentence.

As a threshold matter, appellant failed to object to the trial court’s sentencing decision. Even though the court detailed its ruling and reasons in a tentative decision before pronouncing sentencing, appellant did not challenge the court’s finding the crimes in counts 6 thru 9 occurred at different times. Therefore, he has forfeited his right to contest that finding on appeal. (People v. Scott (1994) 9 Cal.4th 331, 356 [“complaints about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons cannot be raised for the first time on appeal.”].)

On the merits, we are convinced the trial court acted within its discretion in imposing consecutive sentences for the crimes appellant committed against Christine and Dianna in counts 6 thru 9. Although the crimes were committed close in time to one another, appellant completed his sexual batteries on Dianne before victimizing Christine. And with regard to both women, he had the opportunity to reflect on his actions before committing each of the subject offenses. Under these circumstances, consecutive sentences were warranted. (People v. King (2010) 183 Cal.App.4th 1281, 1323-1326 [upholding consecutive sentences where the defendant first assaulted his victim by touching her breasts and then assaulted her again by touching her vagina].)

Appellant fears the trial court was unaware the counts at issue on remand involved only three victims, not four, as was the case at his original sentencing hearing. He suggests this may have been why the court believed his crimes were committed at different times. However, when defense counsel brought this issue to the trial court’s attention, the court made it clear it understood there were only three victims involved in the counts on which appellant was facing resentencing. We conclude its sentencing decision was not based on an erroneous understanding of the facts.

In any event, the law is clear that “[o]nly one criterion . . . is necessary to support a consecutive sentence. [Citation.]” (People v. Davis (1995) 10 Cal.4th 463, 552.) Even if the record failed to support the trial court’s finding the subject offenses were committed at different times, appellant does not dispute the applicability of the other factor the court relied on in imposing consecutive sentences, i.e., the crimes and their objective were predominately independent of each other. (Cal. Rules of Court, rule 4.425(a)(1).) That being the case, there is no cause for reversal. (People v. Scott, supra, 9 Cal.4th at p. 355 [a trial court’s error in formulating or articulating its sentencing choice is subject to harmless error analysis and its decision will not be disturbed on appeal

unless it is reasonably probable a more favorable sentence would have been imposed absent the error].)

DISPOSITION

The judgment is affirmed.

BEDSWORTH, ACTING P. J.

WE CONCUR:

FYBEL, J.

IKOLA, J.